Obamacare: Death by Origination
Obamacare will die. Its killer? A single sentence: “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”
Death by origination: that’s what I’d call it. I’d also call it justice; the Democrats’ crimes, so to speak, have finally caught up with them. It seems they didn’t quite follow the rules when ramming President Obama’s Affordable Care Act through Congress. In fact, they didn’t just fail to read the handbook, they threw it out altogether.
For clarity’s sake, I’ll start at the beginning, way back in 1789. At the time, debate was raging over our new constitution: deals were struck, compromises were made, and eventually, papers were signed. In those papers lay one obscure but incredibly important clause: all bills “for raising revenue” must originate in the House, not the Senate. As James Madison wrote in Federalist 58,
The house of representatives can not only refuse, but they alone can propose the supplies requisite for the support of government.
The Senate, for its part, may amend such a bill. How far does this power stretch? For Madison, the “difference between a permissible Senate amendment and an impermissible Senate amendment would ‘turn on the degree of connection between the matter and object of the bill and the alteration or amendment offered to it.'”
In short, the men who wrote the Constitution intended for all bills that raise revenue to originate in the House; those bills could be amended by the Senate to a degree. Now onto the present.
It all starts with H.R. 3590. Google that bill today and you get something like this: “H.R. 3590 – Patient Protection and Affordable Care Act.” But H.R. 3590 did not start out as the “Patient Protection and Affordable Care Act”; in fact, it had absolutely nothing to do with healthcare.
When the bill initially passed, it was called the “Service Members Home Ownership Tax Act of 2009” and amended IRS codes “to modify the first-time homebuyers credit in the case of members of the Armed Forces and certain other Federal employees, and for other purposes.” What H.R. 3590 didn’t do was increase revenues. That’s when the fun began.
Instead of waiting for the House to pass its own healthcare bill — the “Affordable Healthcare for America Act” — Senate Democrats took up H.R. 3590 and exercised their right to amend what they claimed was a revenue-raising bill (it wasn’t). But they didn’t amend H.R. 3590. No, they deleted everything — every single word — except for the bill number. What filled that empty space, you ask? The “Patient Protection and Affordable Care Act.”
Madison wouldn’t approve.
With a filibuster-proof majority in hand, the Senate passed its ‘amended’ version of H.R. 3590 by a 60-39 margin (one Republican abstained). Victory…or not.
Unfortunately for President Obama, Sen. Ted Kennedy (D-MA) died just before the ACA’s approval. Paul Kirk filled in, ensuring the Democrats didn’t lose their 60-vote threshold. Scott Brown, however, won a January special election and turned the seat red. Bye, bye filibuster-proof majority, hello big problems.
House Democrats didn’t like the ACA. They had always planned to pass their bill — the “Affordable Healthcare for America Act” — and go to conference with the Senate. At that point, the two would iron out their differences and craft a more palatable law. No problem, right? Wrong. Because the Democrats’ filibuster-proof majority had disappeared with Scott Brown’s ascendance, any bill that came out of conference would necessarily have to attract at least one Republican vote to pass in the Senate.
With no desire to compromise, Senate Democrats convinced their counterparts in the House to pass the Senate bill in its entirety. In exchange, they promised to pass a second bill amending the ACA to the House’s liking. This later bill — the “Healthcare and Education Reconciliation Act” — made budgetary changes to Obamacare; according to the Congressional Budget Act of 1974, budget changes only require a simple majority to pass in the Senate. Obama had his silver bullet.
On March 21, 2010, the House passed both the Senate’s “Patient Protection and Affordable Care Act” (219-212) and its own “Healthcare Education Reconciliation Act” (220-211); both were subsequently approved by the Senate. In days, President Obama’s dream became a reality…or did it?
Remember the pesky little clause I highlighted earlier, the one requiring all revenue-raising bills to originate in the House? That string of 25 words will destroy Obamacare.
The problem isn’t hard to see, according to Georgetown Law professor Randy Barnett:
Senate Democrats utilized what is called a ‘shell bill’ procedure taking an ostensible revenue bill passed in the House [H.R. 3590], ‘amending’ it by deleting its title and every single word, retaining only the House bill number, and then inserting the 2700 pages of the Patient Protection and Affordable Care Act.
As Barnett suggests, H.R. 3590 was not a revenue-raising bill (trust me, I’ve read it). Senate Democrats gave it revenue-raising properties for the very first time when they inserted the ACA. Sneaky? Yes. Constitutional? No. My fellow Hoya gives an answer that should make Democrats shudder:
Note well: if the use of ‘shell bills’ are held to be sufficient to satisfy Art. I, sec 7, then the Origination Clause ceases entirely to operate and becomes part of what I call the ‘Lost Constitution.’ No way did the Patient Protection and Affordable Care Act originate in the House before it was amended in the Senate. If judges cannot make this assessment, then they might as well hang up their robes.
“But Obamacare isn’t a bill for raising revenue,” you cry! “It may raise revenue, but that’s not its purpose.” Oh, but it is. The Supreme Court said so just last year. The mandate is a tax, remember? The sole purpose of a tax is to raise revenue. Do you really think a bill’s “greater purpose” — expanding health coverage — trumps one of its key provisions — raising revenue to help pay for said expansion? If that were the case, the “Origination Clause” would once again collapse on itself: the Senate could pass any revenue-raising bill it wanted so long as the law’s stated “purpose” superseded money. So, to answer your potential critique, yes, Obamacare is for raising revenue.
That, of course, is kind of a problem. You see, “All Bills for raising Revenue shall only originate in the House of Representatives….” This revenue-raising bill originated in the Senate. Hence, the “Patient Protection and Affordable Care Act” is unconstitutional, in its entirety. The whole thing must go.
The Senate may amend a revenue-raising bill, but it cannot gut a fake one, replace it with something else, and call the product a law. That is exactly what Senate Democrats did with H.R. 3590. My friends, the ACA was passed illegally. Unless the “Origination Clause” is struck from the constitution via amendment, Obama’s signature legislative victory is dead, 4 years after becoming law.
What now? Well, the courts still need to make a ruling. A lawsuit has been filed and currently awaits review in the U.S. Court of Appeals for the D.C. Circuit. Only judicial activism, the bane of America, can save Obamacare now. I for one do not believe it will.
The Affordable Care Act will die. How will the country react? What will happen to those who have already enrolled for subsidized healthcare? I don’t know, but I will say this: the ends do not justify the means.
Two years ago, the Supreme Court upheld the individual mandate by ruling it was a tax, not a penalty; liberals celebrated and conservatives cried. Today, the decision Pelosi hailed as a victory for America will prove the ACA’s undoing. That “tax” made Obamacare a “Bill for the raising of Revenue,” and in doing so, invalidated the entire thing. How ironic.